Why it’s a great thing that HB 243 did not pass

April 27th, 2012 · admin · Florida law, current events, litigation Comments Off - Tags: , , , , , ,
Dan Smith, Esq

Dan Smith, ligitation attorney

Recently the Florida state Senate prevented a change to the way litigation processes are performed that would have had a lasting and rippling impact across the state in more ways than projected. Thank goodness it didn’t pass. The average citizen may not appreciate the effects it would have on every aspect of the legal system, so I’d like to get into a few details with you about what the “Expert Testimony Bill” (HB 243) would have meant for Floridians.

When attorneys call experts to testify in court, they are held to standards to prove to the court that the “expert” is qualified to speak on the subject as an actual expert. Since 1923 Florida has abided by a set of standards for this proof known as the Frye standard, which requires that expert testimony be based on information that is generally accepted in the expert’s field. HB 243 would have changed the requirement of proof to be in line with a standard known as the Daubert standard instead.

The Daubert standard is a more complicated, multi-part test in which every judge has to test the scientific basis for the expert’s opinion before the jury can hear it as evidence. In this situation judges become expected to be intimately familiar with various scientific studies; in effect, turning them into mini-scientists.

There are several problems with the replacement of the Frye test by the Daubert standard. For starters, it would allow companies who choose to be negligent in their responsibilities to injured people to continue eliminating the rights of individuals. Companies with negligent safety procedures or slip-shod policies already try to place the blame for the cost of litigation on the injured victims. Companies go so far as to call the lawsuit of someone who has been injured by their negligence “frivolous.” These irresponsible business practices let companies get away with relying on the assumption that an injured person won’t be able to afford litigation or that the lawsuit can be subdued by the immense cost and settled out of court instead. This means an injured victim will likely receive far less than they could have been awarded in Court.

Under the Daubert standard more stringent regulations for acceptance of expert testimony would have given these large companies another tool in their arsenal to delay litigation, increase its potential cost, or intimidate an injured person with the potential snag that experts called on behalf of the victims may never even be heard by the jury. This underhanded move by large businesses with already questionable policies would have allowed the denial of full justice to many people who receive life-altering injuries after accidents.

Big businesses may have tried to get away with more, and although it seems like it might have been a positive for businesses overall, HB 243 would have increased the cost of litigation for all businesses in the long run. Increased court costs would be detrimental to honest and responsible medium-sized or small businesses throughout the state faced with litigation procedures. Most of these businesses which are sued have little choice in their litigation strategy, and this should be a big consideration toward the justice they will receive as well.

Another more universal and fundamental problem with changing expert testimony requirements across all types of court cases is that power is removed from the jury’s hands and is placed into the hands of judges. When a judge is expected to know whether or not an “expert” is indeed considered an expert in their field by that field’s standards of scientific practice it can prevent the jury from hearing all the potential expert testimony and deciding for themselves based on all the information. If the information is based on general principles accepted in the expert’s field, then the jury should decide which expert they believe, not the judge.

The community will end up suffering from an increased burden of cost for this change as well. If a person cannot afford the litigation process at all, or does not receive a settlement that allows them to be self-sufficient long-term, the person could end up going on social support systems such as Medicare, Medicaid, Social Security disability, or Supplemental Security Income. This displaces the onus of a person’s pain and suffering from the company whose negligent procedures were the cause of the disability, back onto the taxpayers of the community.

Insurance companies and big businesses will continue to make it difficult for those with legitimate claims to seek reimbursement for their injuries. The rippling effect of increased cost, decreased payout, and more difficult burdens during the legislative process for normal citizens and taxpayers would have ended up spreading from the companies themselves, through the court system, and back out into the pockets of other taxpayers. If HB 243 had been allowed to be implemented, regular Floridians may not have noticed an immediate difference, but they certainly would have been affected. Personal liberty, corporate responsibility, and judicial process affects each of us every day, and changes to one will unavoidably cause changes to the others whether we are immediately aware of it or not.

Let an attorney speak for you

August 18th, 2011 · admin · Medicare, contract, disability, insurance, personal injury, privacy rights, worker's compensation Comments Off - Tags: , , , , ,
Attorney Dan Smith

Dan E Smith - Worker's Compensation Attorney

I have a saying around the office regarding the likability of clients: “The clients I would most enjoy spending casual time with usually give the worse deposition testimony.”

This is generally because genuinely nice people want to be helpful and are under the misconception that the point of a deposition is to prove their case.  It’s not.  A deposition is a recorded personal statement about facts that will be argued in the event of a trial. It acts as an opportunity for the opposing legal team to gather information from the person giving the statement. Opposing counsel will then seek to use this information against defendants, witnesses, plaintiffs, or whoever is being deposed, in any way they can.

How many times have you watched a television cop show and asked yourself, “Did that guy really just say that?”  The Constitutional Fifth Amendment right against self-incrimination when questioned by police after being arrested has been around since the Supreme Court decision in 1966, Miranda v. Arizona. When arrested, you “have the right to remain silent,” and yet day after day people don’t use it. Some people may believe that they are invincible to prosecution, others may be ignorant of the workings of the legal system, and still others may falsely believe that in giving all the information they have they will receive some sort of leniency. In my experience with social security disability, worker’s compensation, and personal injury claims, I unfortunately witness this same tendency to over-reveal fairly regularly.

Whether it is ego or simply a polite eagerness to please, we as people think that if we talk enough, eventually we will convey our message to the party listening. We, for some reason, equate the quantity of words with the ability to convince others of the outcome we desire; but, this is not the case. Generally, the ability to convince someone is based on the structure and content of an argument, not the amount of words used. In legal matters specifically, it has more to do with how well a point of law is argued, not for how long.  How many times have you been persuaded from a position in which you felt confident by lengthy or informative arguments presented from the opposing side? For most of us, this is rare. Usually, when our positions are shaky on a topic we are able to be swayed one way or the other, however, a firm stance is less likely to be influenced. For an attorney, part of the job and one of the skills that we hone is this exact ability to sway those who are not firm in their stance and attempt to influence the perception of those who have already declared their position. This ability to skillfully argue a position is valuable and something which we study and practice on a daily basis.

In my personal experience, as well as situations I have heard about from other attorneys, there are times when great cases are destroyed because of a client’s well-meaning actions. In the heat of a moment, people have been known to send lengthy, wordy, and thorough documentation to the agency with which they have placed a claim (insurance, SSD, etc); detailing what the person believed was their entire case. While this person, who afterwards hires an attorney and becomes their client, may believe that honesty is the best policy and that being forthcoming to all involved is the right thing to do, the truth is that instead the client gave away something they should have kept. The information that they might reveal may not have been necessary to reveal or share, and in truth the client may have adversely affected their own case by revealing not only these details, but the nature of their personality, and their likeliness to react emotionally to various pressures.

While the client feels that their actions were justified, (“But Mr. Smith, it is all the truth!”) the attorney for the opposition will use every resource at their disposal to their advantage, including any direct correspondence to them, statements given to insurance agents or police, postings on social media such as Facebook or Twitter, and sometimes even the informal statements given to friends and relatives.

So please stand up, protest, write letters and argue your case, but do it to an attorney. Realize that the statements you want to make can and should be evaluated by an attorney on your behalf, to establish the validity and legalities of your claim. Once you’ve engaged counsel on your behalf you should make the most of your relationship with them to correspond with all others involved in your claim. Let the experience of legal representation work for you to fullest capacity, including knowledge of what information is required to be revealed to opposing counsel. Please, accept an attorney’s advice on how and when to “plead the Fifth,” and on how to appear and speak at a deposition, hearing, or in court.

Expert Medical Advisors Could Be an Injustice to the Florida Worker’s Compensation System

July 11th, 2011 · admin · EMA law, current events, disability, insurance, worker's compensation Comments Off - Tags: , , , , ,

Dan E Smith - Worker's Compensation Attorney

As a passionate worker’s compensation attorney, I am dedicated to fighting for justice for people injured on the job. The intent of worker’s comp insurance, provided by employers to their employees, is to ensure that any person injured in the performance of their job duties is expediently compensated for medical expenses or lost wages suffered due to the injury. According to FL §440.015, a worker’s comp claim should be a fairly straightforward process. It is frustrating to me, as an ardent believer in corporate responsibility and social justice, to see anyone – but especially one of my clients – become entangled in complications unnecessarily injected into this process. Let’s talk specifically about Expert Medical Advisors (EMAs) for a minute.

Let’s go step-by-step through a worst-case hypothetical scenario for a possible worker’s comp claim.

First, someone is injured at work. The injured person makes the report to the employer and is referred to the employer’s worker’s compensation doctor for necessary medical attention. This doctor, under the assumption of being paid by the worker’s compensation insurance, will use their medical knowledge to recommend the best course of action he or she sees that the injuries require. In this hypothetical, let’s imagine that this person’s injury is severe enough that the doctor recommends an expensive medical procedure or long term treatment.

At this point, the insurance adjuster – who may have no more medical training than a high school graduate – may make an arbitrary decision to deny the injured person’s worker’s compensation claim. In the worst of situations he or she may do so because they simply do not see the procedure as “necessary,” but in the best of cases he or she may have consulted with a doctor in order to make this decision. Never mind that this doctor may have only reviewed the case on paper and never met with the client, or may be located out of state and not licensed to practice medicine in Florida. The doctor may not even be in the same specialty field as the treatment recommended. Maybe the worker’s compensation doctor who physically examined the injured person has recommended an orthopedic surgery and the doctor reviewing the case for the insurance adjuster is a gynecologist; it doesn’t matter as long as they have graduated from medical school and have a license to practice medicine somewhere they are allowed to report back to the insurance adjuster with their professional medical opinion.

At this point, since the claim has been wrongfully denied, an injured person can still file a Petition for Benefits. Either party can hire an Independent Medical Examiner to make a judgment on the person’s health and necessity of the suggested medical procedure. Typically, the injured person cannot afford to hire this person, so after a long wait, the insurance carrier may do so. In an ideal situation, this medical examiner will see that the procedure is medically necessary, even if it is expensive, and will advise the parties and adjuster of his or her decision. But, unfortunately there is nothing really “independent” about this medical examiner, as they have been hired by the insurance company. The independent examiner can also give a bogus reason why the medical course of treatment is not necessary. He or she might say that the injury existed before the person was injured at work, or that it has been caused by a degenerative physical state and cannot be attributed to the at-work injury. Any number of reasons can be given in order to further bury the injured person’s worker’s comp claim.

Unfortunately, the situation in place prevents the judge from being a judge. The EMA law prevents the Justice from taking into evidence additional clarifying statements from the injured person about the state of their health and cause of the injury, or from considering prior medical records and history. Instead, EMA law specifies that at this point an Expert Medical Advisor (EMA) be called in to make the final decision about the recommended course of treatment for the injured person. Typically, the EMA will only be required to examine the patient once before making his or her final determination on the necessity of the recommended medical procedure. If the EMA confers with the independent medical examiner’s previous assessment, and reports to the court that the procedure is unnecessary, this is the final determination of the client’s worker’s compensation claim. Denial of the claim in its entirety. There are options to appeal this final determination, but they are limited.

So, sometimes it doesn’t matter what the original worker’s compensation doctor advises. It doesn’t matter what evidence the injured person has to support their claim, or to invalidate the opinions of the medical examiners. It doesn’t matter that the judge may be sympathetic to the injured person’s plight, or that the medical examiners are not intimately familiar with the injured person’s case, the injured person’s hands can be tied by the final word issued by the Expert Medical Advisor.

Of course, I understand the argument that this system has been put in place to prevent fraudulent worker’s compensation claims. I understand the argument that it also prevents judges from considering faulty or outdated medical knowledge, or the misinformed medical testimonies of attorneys, as supporting evidence for worker’s compensation claims which may be unjustified. I understand that this law exists so that each person who has been denied in a worker’s comp claim can have their case evaluated by a court-appointed expert. Of course, I believe that each injured person is entitled to have their claim examined by an expert upon its denial, and of course I do not believe that judges should be expected to be experts in both the vast areas of legal and medical knowledge. But, I do believe judges should be allowed to be judges.  It simply makes me furious when this existing system allows insurance companies to deny claims in order to pay more attention to their profit margin and effects on their bottom line than the quality of coverage they provide for real-world people, with real-world suffering.

Florida legislators should have their attention called to this situation. It is a legislative injustice to disallow the judicial system from providing recompense to injured people based on arbitrary or under-informed so-called “experts.” Maybe it’s because I have a heart which is sensitive to the struggles of the underdog,  maybe it’s because I am afraid anytime I see people swallowed by cracks in a system which is intended to protect them, or maybe it’s because I simply can’t stand to see injustice occur to the citizens of my home state. Whatever the reason for my personal frustration, I am reminded of the eternal truth in the immortal words of Dr. Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”

The State of Assisted Living Facilities In Our State

June 7th, 2011 · admin · Medicare, assisted living, current events, disability, personal injury, wrongful death Comments Off - Tags: , , , , , , , ,

Dan E Smith - Personal Injury Attorney

The Sunshine State has long been a desirable locale for retirees. People come from all over the country to settle in and spend their final years in Florida’s warm climate, beautiful scenery, and relaxing lifestyle. Many people initially purchase a home when they arrive, but after a few years might find that their capacity to care for themselves becomes increasingly limited. As their ability to care for themselves (or their spouse) diminishes, some people may choose to relocate to an assisted living facility to receive the daily medical and physical care that they need.

Florida was once the “gold standard” for assisted living facilities (ALFs), providing an example of the best care in the nation for our country’s senior citizens. So I was disturbed to hear recent news put forth by investigations conducted by the Miami Herald and Miami NPR station WLRN about the current state of care in our state’s ALFs. According to their findings, thousands of our state’s senior citizens are at risk of serious neglect, abuse, and potentially wrongful death due to the “care” they may receive at certain sub-par ALFs around the state. Accusations range from prescription violations, to forceful restraint and physical abuse, to negligent supervision, to a gross lack of basic physical provisions – such as bathing, clean clothing and linens, and proper nutrition. The stunning and inexcusable list goes on and on.

With my areas of law practice involving topics sensitive to the needs of our senior citizens, this issue is near to my heart and makes my blood boil. How can a family member be betrayed in such an appalling way by an establishment they have entrusted to care for a loved one? How can state agencies allow taxpayer money to continue funding places where a generation of US citizens known for their hard work and integrity are mistreated in such ways?

The reason I bring up taxpayer money is this: if these ALF residents are disabled and receiving Social Security Disability (SSD) from the state, that money may be used to help pay their living expenses. If these residents are over 65 and eligible for Medicaid, Medicare, and/or Supplemental Security Income (SSI) their expenses at an assisted living facility may be at least partially (but in some cases entirely) covered under their government assisted income. So, when these facilities are accepting government funding, how can their state of care be so abysmal? How could state regulated agencies not place priority on investigating the personal injuries or potentially wrongful deaths which occur at these locations? How can these facilities be allowed to continue? 

While the agencies are being run through the social and political gauntlet for improving their regulations and navigating the hot water they have gotten themselves into, the real underlying problem remains in the forefront of my mind: people are being hurt. People are suffering. And I want to do anything in my power to work against this fact. Florida §429.28, also known as the Assisted Living Facility Resident Bill of Rights, explicitly states that residents of these facilities are entitled to all rights guaranteed by law. Every ALF resident has the right to live in a safe and decent environment, free from abuse and neglect. Every ALF resident has the right to exercise civil liberties and to have access to adequate and appropriate health care. Every ALF resident has the right to present grievances and recommend changes in policies, procedures, and services to governing officials without restraint, coercion, or reprisal.

If you know someone who has suffered personal injury, or any violation of these rights, at an assisted living facility in the state of Florida, or if you suspect that a family member has suffered a wrongful death due to negligence or poor care while being housed in an assisted living facility, please seek justice immediately.

The Value of Parents

May 18th, 2011 · admin · current events, disability, insurance, personal injury, wrongful death Comments Off - Tags: , , , , , , ,

Dan Smith - Wrongful Death Attorney

How do you put a price on love? Unfortunately, sometimes in a legal situation this is what we are asked to do. If a family has suffered the loss of a father or mother of young children not only is the emotional cost to the family a devastation, but if the loss was due to an unexpected trauma such as medical malpractice, a car accident, or a personal injury the unforeseen consequences of the lost person’s investment of time to the family can take an even larger toll. The costs can be overwhelming for the spouse who’s left behind.

The modern image of the family has shifted since I was young. The ideas of a mother and father having separate roles in a family have begun to merge into a generalized idea of “parenting.” In today’s world, most people find a dual-income household basically necessary in order to get by. The extensive tasks and demands of raising children and managing a home are shared more and more by both mothers and fathers. Some couples still have the luxury of having one parent stay at home full time with the children, but even if both parents work, we may not realize how much the other person’s contribution means to the home until they are no longer there to make it.

Dads have always been as important to families as moms, but traditionally are considered the breadwinners – going out in the morning to work all day and “bring home the bacon.” But today’s world is different. The 2010 US Census data shows that the number of full time stay at home dads has increased 50% over the last decade, and the estimated number of dads who work or go to school part time, and stay at home with the kids as much (or more) than Mom are estimated to be 10 times higher than that. This new family model, according to a recent study by University of Texas at Austin, raises kids that are just as happy and healthy as their more traditional working-dad counterparts. Couples who choose to have Dad stay at home and Mom be the bread-winner are just as financially well off, successful, and happy – or even happier – and their numbers are expected to continue to grow. Whether it’s Mom or Dad who decides to dedicate their full time energy to the kids, or if the two team up to divide the responsibilities of careers and childrearing equally, how do you put a price on that happiness?

When a mother or father is lost in a terrible circumstance and the surviving spouse has contacted me to pursue litigation for some kind of compensation, the issue of the lost parent’s “worth” comes up in court. Usually, we call in a “vocational analyst” to discuss the value of the lost parent’s contribution. A parent’s work is never done: there is cleaning, cooking, homework help, shuttling around to activities, party planning, errand running, injury and illness care, bill-paying, yard-work … a list of daily necessities which were divided between two people and are now shifted onto one. (Not to mention if the kids were homeschooled!)

The vocational analyst will look at the lost parent’s time spent in each activity, compared with what the family would have to pay a professional to complete the same work. In recent years, analysts have tried to narrow down the “actual salary” of a full-time parent. This has proved unsuccessful, as each family situation is different, but a recent article on insure.com estimates a stay at home parent’s worth at $61,436 per year. MSN.com puts that number over double: $138,095 per year. The biggest factor of this – for which estimates and real costs can range from $20,000 to more than $70,000 annually depending on differing factors – is round-the-clock childcare. That’s no small potatoes, but neither is the work which is involved. You can use salary.com’s “Mom Salary Wizard” here to calculate the salary for a stay at home parent in your family.

Of course, we all know our parents are priceless – invaluable. And it might seem heartless to “put a number” on the value they bring to the lives of their families. But these articles made me stop to think: when a couple is buying life insurance, how much of a financial burden should they be prepared for to ease the surviving parent’s new situation? Not because the lost parent suddenly isn’t contributing an income, but because he or she suddenly isn’t doing everything else? As an attorney representing a surviving spouse suddenly faced with extreme loss and an emotional court case, it is my job to fight for them to the fullest extent of my abilities. This issue made me think about how much it costs a family – really costs them – if suddenly, one of the parents is gone.

Mother’s Day was recently celebrated on May 8th. And Father’s Day is coming up soon on June 19th. We should all take a moment from our busy lives and remember the true value that our parents, and all parents, bring to the lives of their loved ones. Not just in dollars and cents, but in incalculable love, time, and affection.

Effects of Gov Scott’s Decisions on BP Claim and Disability

May 2nd, 2011 · admin · Medicare, current events, disability, good faith Comments Off - Tags: , , , , , ,

Dan Smith - Disability Attorney

In the last two weeks, two major decisions involving the Florida budget have come out of Governor Rick Scott’s office which are upsetting and concerning for many of my clients and Floridians in general: the Governor’s proposal to cut state Disability funding, and his decision not to have Florida participate in the Class Action Lawsuit against BP and DeepWater Horizon for the 2010 Gulf Oil Spill.

Earlier this month Gov. Scott placed an emergency order to cut funding for the Medicaid-waiver program by 15%. This program is offered by the Agency for Persons with Disabilities, which is over-budget by $174 million. Gov. Scott lifted that emergency order on the condition that the state Legislature can find a way to cover the gap. The House and Senate have resolved to work out this issue over the next two weeks. So, while the immediate danger to Medicaid funding may have been avoided, the bottom-line problem of insufficient funds remains.

The program, which supports independent living for over 30,000 Floridians and has a waitlist of almost 20,000 more, is a big concern for lawmakers as well as the people who rely on that funding. Tallahassee.com reports that without this funding, the executive director of Habilitation Management Services is afraid that it will “likely be a death sentence” for some people. “It’s real frustrating,” Gov. Scott said this week, “we’ve got to come up with a funding mechanism and a management team that’s going to make sure we can take care of this very vulnerable group of people but also make sure we live within our means.”

Meanwhile, on April 19 Gov. Scott announced that Florida will forgo joining the Class Action suit against BP for last year’s oil spill, which has outraged many. State Representative Rick Kreisman called it a “dereliction of duty” not to “make a claim for damages and other relief beyond what BP may pay through the Gulf Coast Claims Facility (GCCF).” The House is scheduled to meet with the GCCF’s attorney this week or next to discuss compensation distribution to individual Floridians, but they will not be discussing any compensation to Florida itself. A spokesperson for the State Attorney General’s office says that they agree with Gov. Scott that “filing a claim against BP is the best and fastest way to recoup losses” for the state.

Two days later, BP announced their voluntary creation of a $1 billion Environmental Restoration Fund to be divided between the effected states so the Gulf area can begin the process which Gov. Scott called “restoring our natural treasures to pre-spill status.” Florida’s piece of this pie is reportedly $100 million, but no one has any accurate estimate of the total cost it will take to repair the environmental damages. At least we know that it will be BP and not tax-paying Floridians who will foot the initial bill of repairing the effects of this disaster.

The Governor is an experienced businessman used to handling big numbers and big business, but he seems to be upsetting so many people who feel he is missing some of the small, yet important, details for Florida’s long-term financial and social goals.

The funding generated by a 15% decrease to the Medicare-waiver program may be a short-term fix for that program’s deficit, but it would likely be a band-aid over a bullet wound to the whole state budget. While BP is voluntarily providing funding to begin environmental recovery, the state could both take advantage of that funding and pursue any additional avenues for possible income – including claims through the GCCF.

The federal trial for the class-action lawsuit isn’t scheduled to begin until next February, and no one has an estimated cost for the litigation yet. Maybe this is the reason that Gov. Scott decided not to join in – to avoid encumbering the State with the additional up-front expense. I only hope that the money the State saves by not participating in this suit will help citizens by making its way into programs which Floridians already enjoy and are benefited by, like Medicare. There’s also the timeline to consider: if litigation doesn’t even begin until next year who knows when the State may actually receive any compensation? A claim through the GCCF may end up being much quicker.

Many of my clients are on SSD or recipients of Medicare and have concerns about the changes taking place in Tallahassee. Right now, all I can tell them is that we’ll have to see how the Legislature works things out in the next couple weeks. Of course, I myself am very anxious about the potential changes. My last blog, talked about the national attention that Medicare costs and cuts have received, but here we see the issue at our own front door – amongst our family, friends, and neighbors. While Florida’s natural beauty may be on its way to recovery, we must remember the damage that can be done to our community if responsible budget management is not balanced with basic human kindness.

Medicare Cuts Could Be Costly

April 14th, 2011 · admin · Uncategorized Comments Off - Tags: , , , ,

Dan Smith - Disability Attorney

Crisis was averted last week when President Obama and Congress agreed to cut $39 billion in the federal budget for the remainder of the fiscal year. President Obama also laid out an outline of how to decrease the deficit by $4 trillion over the next 12 years, which included ending the Bush tax cuts to incomes above $250,000 and reforming social security.

According to the Social Security Administration website, 54 million Americans will receive $730 billion in Social Security benefits and of those 54 million Americans, 8 million are disabled and in 2010, received $8.8 billion with an average of $1,068 in month benefits. Considering that there is expected to be almost twice as many elderly Americans in 2041 as there are now, talk of reforming Medicare and Medicaid might be worrisome to the public, but it is only logical.

In the last five years there has been a steady increase of applications for social security disability. President Obama has stated that he does not want to make any immediate changes to social security since the program is not a major contributor to the deficit, however, if he were to make changes to Medicare then the value in Social Security Disability for obtaining Medicare has to be looked into.

Republicans are against increasing taxes for the rich, and some such as Rand Paul of Kentucky, are putting forward an alternative. His Social Security Solvency Sustainability Act would gradually increase the retirement age to 70 by 2032. Right now, Medicare is for people aged 65 years and older, but people younger than 65 with disabilities or permanent kidney failure can also qualify for Medicare. If you are under the age of 65 then you are eligible for free Medicare hospital insurance if you have been entitled to Social Security disability benefits for 24 months. If the retirement age is increased then the resulting affect on Medicare could be a change in policy where elderly citizens don’t receive their full Medicare benefits until the age of 70 and those under 70 could possibly have to wait longer to receive their Medicare benefits as well.

Political, social, and financial reforms are all apart of life, as nothing remains constant forever. If any changes are to be made towards Medicare then it requires serious consideration of the effects that it could have on those that rely on Medicare to survive. Ample portions of my clients are those that are either on or fighting for Social Security disability benefits in order to receive Medicare. If Medicare, for whatever reason, were to be altered in a way that it made difficult to receive treatment then it would not only hurt the patient, but also the doctors that treat the patient and the government.

Hypothetically, say I had a 42 year-old construction worker who got hurt on the job and needed to be put on Social Security disability in order to sustain a living. He receives his monthly disability check, but because of recent changes to Medicare, he is unable to get the treatment he needs to recover completely and return to work. Without Medicare he will not be able to work at the level he did before, which means he will make less money to treat his persisting pain. Doctor’s visits and treatments could go unpaid all the while, diminishing his role as an active member of the human society.

There is light at the end of the tunnel, though, as some practices to save money are being put into form. The Social Security Administration is now sending all files electronically to the attorneys at the Coye Law Firm, which helps save money on stamps, paper, and envelopes. Attorneys at the Coye Law Firm have also been selected as a test site for holding hearings with the Social Security Administration through teleconferencing, which will help save money on gas and future wear and tear on a car that comes with driving back and forth to hearings.

The discussions of revamping Medicare is likely a topic that will be reproached for years to come on Capitol Hill, but the impact that a change could have on its existing and future members must be at the forefront of the negotiations.

Universal Healthcare Could Be Demise of Workers’ Compensation

March 31st, 2011 · admin · Uncategorized Comments Off - Tags: , , , , , ,
Dan Smith

Daniel E. Smith, Workers Compensation Attorney

Barack Obama ran his presidential election on the promise of healthcare reform. It is estimated that upwards of 50 millions Americans are uninsured in the United States. That is a staggering number when you think of the population of the United States, which currently sits just above 300 million people. Add that figure to the number of jobs that have been lost (and the insurance that comes with a job) then the amount of Americans uninsured is frightening.

People from both sides of legislation fought and are still fighting to amend Obama’s recent healthcare plan, but that is not the only healthcare issue that has been circulating on Capitol Hill. People might remember that Hilary Clinton promised, if elected, that she would set up a universal healthcare system for all Americans. Just because she didn’t get elected doesn’t mean that the issue was dropped.

Even though a universal healthcare plan is not in the very near future, it’s still not too early to talk about the effects that a universal healthcare plan could have on workers’ compensation. Most people are insured through their employer and are covered under workers’ compensation should they get injured at their place of work. The employer, through the insurance carrier, should provide benefits that include, but are not limited to, hospitalization, physical therapy, medical tests, doctor’s visits, and medication. If a universal healthcare plan were implemented then how would the new system go about figuring out what coverages are provided?

Currently, workers compensation is a state run program. Considering that workers’ compensation only accounts for about 2-3% of the health care system makes overhauling it on a national level a daunting task. Adopting national laws for workers’ compensation could also interfere with state laws that are already in place. If not kept at a state level then workers compensation benefits could decrease. At worst, we could see the end of workers’ compensation as it would seem redundant to offer workers’ compensation if all Americans are provided insurance regardless if they have a job or not.

Employees are also offered indemnity benefits under workers’ compensation, which helps provide an income for injured employees while they are recovering and unable to work. Under a universal healthcare plan, an employee’s medical costs would be covered, but an employee might not be able to collect indemnity payments to support him or herself.

The bottom line is that workers compensation is too fragile and small of an area of the healthcare system to be amended and overhauled by a universal healthcare plan.

Intellectual Property Rights in the Facebook Afterlife

March 18th, 2011 · admin · facebook, intellectual property, privacy rights Comments Off - Tags: , , , ,
Dan Smith

Daniel E. Smith, Attorney

It seems that these days everyone is on Facebook. We use it to keep in touch with other people and share information, no matter how mundane or personal it may be. As my colleague Nanette Cruz notes in her recent blog post, Facebook users are beginning to feel the legal impact of status updates or photos. But do they fully understand how much of their profile is properly “theirs”? Once they post information or photographs on Facebook, who owns it? And more importantly, when a user dies, does their online profile die as well?

According to the Facebook Terms of Service, users can manipulate how their content is shared. But once you click “share”, you grant Facebook the “non-exclusive, transferable,…royalty-free, worldwide license” to use your intellectual property, which includes photos and videos. Intellectual property, in short, is an intangible, unique thing you own. Usually, as the word “intellectual” implies, these products are from your mind, such as a song, a poem, or a photograph. Many Facebook users just post photos of events or their friends and family. But others may use Facebook as a means to promote their artwork or music, and this is when ownership rights need to be clarified. Facebook’s Terms state that they can’t make money from the property and their property rights end once the user takes the content down, but that doesn’t mean Facebook can’t share your active content without getting your permission first.

Social media sites rely on a user’s individual thoughts, so could profiles in general be considered as intellectual property? I don’t think it is unreasonable to say so. If users are given legal control of their profiles and content, do they also have the right to say what happens to it after they pass away? What about the active content on the profile? Thinking about what to do with your belongings after you die can be a depressing subject. For that reason, some people avoid the subject until it’s too late. But even the most proactive people who write a will early on in life may not think about what happens to their online accounts after death.

Facebook has thought of a solution for this also. The family and friends of a deceased user have two options: they can memorialize the account or request that it be deactivated. Unfortunately, algorithms don’t take into account the emotional trauma that a survivor experiences when they see a box in their mini-feed reminding them to “reconnect with” someone who has passed away. The best way to avoid these technological oversights is to notify Facebook.

Family and friends can not, however, get the user’s login information. Even leaving specific instructions to do so in your will may be a grey area at this point. Because this issue is emerging the legal world, Facebook may be reluctant to give up a user’s information without very clear language. If the deceased person used Facebook to promote themselves as an artist or musician, then their property rights could be compromised by this barrier. Although Facebook strives to protect each user’s privacy, it can create a problem when a user’s loved ones want to protect property rights after their death. Family and friends wouldn’t be able to log in and save the content if the user had not made their wishes explicitly known in a will.

The law can’t always keep up as technology and cultures change. Laws may overlap and contradict with each other. In Facebook’s case, these laws include a user’s right to privacy and to own their intellectual property. Until more specific rules are developed, individuals can protect their rights and interests the old fashioned way: by planning an estate and having their wishes written in an official document. Other attempts at resolving this situation could lead to painful reminders that your loved one–and their creative legacy–has been lost.

Super Bowl XLV Photos

March 11th, 2011 · admin · football Comments Off - Tags: , ,

My family and I made the trip to SuperBowl XLV in Texas to watch the Packers win over the Steelers. Check out my photos:

Me & dad at Super Bowl

Me & my dad, Dan Smith Sr., in the crowd

My dad and me at the Super Bowl

Me and Dad in Packers garb

Smith family at the Super Bowl

The Smith family goes to Texas!

Me & Jacki

Jacki and I don't agree on everything...

Hawk Hat

Hawk Hat